Randy's Rants

Monday, Apr 16, 2018

As an attorney who has practiced law for over 32 years, I find it amazing how some people find attorneys.

Internet searches seem to be the quickest way nowadays, but I still hear from friends or former clients sending me business. If you are considering hiring an attorney to represent you in an employment case, you need to find an attorney who has substantial experience representing employees and who is not a newcomer to employment law or does not merely dabble in that area of the law. Why do I say that? Employment law is fraught with many procedural and evidentiary issues that pose huge problems for litigants, and you will need an attorney who can navigate through those issues without hitting a snag that sinks your case. When choosing an attorney you need to ask how many years they have been handling employment cases and how many total employment cases they have filed and also how many employment cases they have tried to a verdict. There is no substitute for experience when it comes to your employment case.

For instance, some claims require that they be administratively filed prior to going to court. This involves a doctrine known in the law as administrative exhaustion. If an employee who wishes to sue their employer fails to file an administrative claim with the proper entity, then they may lose all rights to sue in the future. In this regard, you will need an attorney who knows which administrative agency needs to be notified about your claim. Discrimination and some retaliation claims require a filing with the Equal Employment Opportunities Commission, or the Department of Fair Employment and Housing? Your attorney needs to know that both of those agencies have work sharing agreements so that filing with one means it is dual filed with the other. However, only a filing with the DFEH can create an immediate right to sue notice that gives you the right to go straight to court. You will need an attorney who knows when you require a right to sue notice from either agency before going to court. Sometimes a claim must be made with the Labor Commissioner of California, or the California Labor & Workforce Development Agency. The Private Attorney Generals Act of California may potentially provide you with a means of securing penalties and attorneys fees so your attorney should have a complete understanding of that statute and its application to your case. Also, the Labor Commissioner does have a staff that can handle retaliation cases. Your counsel should know which retaliation claims can be reviewed by the Labor Commissioner and whether that is a good idea in your situation. When choosing an attorney you should ask your attorney if they are have experience before administrative agencies and ask whether your claim needs to be filed with an administrative agency.

Sometimes you may have recordings of matters that took place at your place of work. Aren’t those always illegal? The answer is not always. Your attorney should understand the federal and state laws involved in secretly recordings and whether they can be admissible in court, and if so, which court. For instance, it is easier to have such tapes admitted in federal court than state court, so he or she should know the potential claims that could allow the recording to be heard by a jury. Similarly, the attorney you choose should understand the differences between state and federal court jurisdiction and also the rules of evidence governing both courts. Some evidence that you may have to support your claim may be inadmissible in one court but not the other. Your attorney should plan ahead even before filing your case to know which court system is better for the evidence that suits your case. When choosing an attorney you need to ask your attorney if they have experience in both state and federal court and how much experience in both courts.

Your attorney needs to understand how to perform legal research because research is where cases can be won or lost. In 2014 I took a case where the defendant had received an opinion from their lawyer that their conduct was appropriate. After performing legal research, I realized their attorneys had not found a United States Supreme Court case that showed their opinion to be incorrect. I spent two weeks researching the issue to arrive at that conclusion. Ultimately, we filed the case and received a substantial settlement for my client. When choosing an attorney you need ask how much time they spend performing legal research and what methods they use for performing that research. All trial attorneys should have a subscription to one of the major online legal research providers.

Your attorney needs to understand what remedies are available to you and which ones best suit your needs. For instance, what if you were terminated from your job but the next month find a job earning more money but at a much longer commute? Are you entitled to the costs of the commute even though you are earning more money now? What if you were discharged and you find a new job earning about the same amount as your old job but you are required to work much longer hours to earn that amount of income? Can that be considered when determining damages? What if you want to be reinstated to an old job? Is that a potential option? For instance, some cases will allow a party to request punitive damages, which involve damages meant to punish a defendant for egregious wrongdoing. Is your case such a case? Will you be entitled to punitive damages? When choosing an attorney you need to ask the attorney if they understand the remedies available to you under the applicable law, and ask what those remedies are for your case.

What about attorneys fees? Most attorneys who represent employees must take these cases on what is known as a contingent fee basis, but can be paid their hourly fees if the statute or contract you may be suing under contains what is known as a fee shifting clause. Hence, if you go to trial and prevail, the defense may be required to pay your attorney and not you. When choosing an attorney you need to ask whether there is a potential for fee shifting if you prevail and under what statute this exists.

Some attorneys will take cases and attempt to settle them early, and when a settlement is not forthcoming, they will leave you and withdraw from representing you. You need to find an attorney who has a reputation of being fearless and going to trial when the defendant does not pay a reasonable settlement. When choosing an attorney you must ask if the attorney is afraid of a trial, and how many trials the attorney has handled.

Finally, you need an attorney who is a member of lawyer organizations that are dedicated to representing employees. I am a member of the National Employment Lawyers Association as well as the California Employment Lawyers Association. Both entities provide forms, research, and an internet forum for members to gain insight and help from other members. Both organizations have annual meetings that provide updates on applicable laws and procedures. When choosing an employment attorney you need to ask if they are a member of either organization and how long they have been a member. Do they attend the annual conventions? Have they been invited to speak at any such conventions?